Last year, I blogged about the impact of a higher education Supreme Court diversity case, Fisher v. University of Texas on K-12 schools. As discussed in that blog, although the decision was a higher education decision, it raised important takeaways for primary and secondary schools wishing to use race as a factor in admission or assignment decisions. As also reported in that blog, the Court remanded the decision to the lower appellate court, the Fifth Circuit Court of Appeals, to decide whether the University could establish that its consideration of race in the case was narrowly tailored. Specifically, the Supreme Court directed the University to show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The Court also directed the Fifth Circuit to apply “exacting scrutiny” to the decision and not to defer too heavily to the University about the necessity of relying on race.

As Jennifer Smith from our firm reported late last week in an FR Alert, the Fifth Circuit recently ruled on the remanded case, and found that the University properly used race as a factor in a “holistic review” in the admissions process. As Jennifer explained:

The Court of Appeals explained that “[t]he sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas enables the Top Ten Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race.” For those limited seats not filled by the Top Ten Percent Plan, the University uses race as one factor in a holistic review aimed at selecting students missed by the Top Ten Percent Plan, such as those with special talents or experiences, including the experience of being a minority that attended an “integrated school with better educational resources.”

The case does not constitute a major change in the law in this area, and the takeaways from our previous blog remain relevant for K-12 school leaders. Specifically, race can still be used as a factor in admissions or assignment decisions, although only where great pains are taken to establish the necessity of such use. Legal counsel for the student in the case have vowed to appeal, though, and it is uncertain if the Supreme Court would agree with the Fifth Circuit if it took the case on for review. As always, school leaders should consult with legal counsel and take care when using race in any admissions or assignment decisions in light of the flurry of legal activity in this area in the courts.

The Supreme Court decided this week not to hear a recent case from the Seventh Circuit Court of Appeals (which has jurisdiction over Illinois, Indiana, and Wisconsin) regarding public school graduation ceremonies in churches. As Franczek Radelet reported when the decision was handed down in 2012, the Seventh Circuit held that a Wisconsin school district violated the First Amendment’s Establishment Clause by holding a graduation ceremony in a church with pervasively religious symbols. The Seventh Circuit found that such action could lead to the perception that the school endorsed the Christian religion. As we explained, the court stated:

Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state.” The majority reasoned that a reasonable observer could “conclude that the District would only choose such a proselytizing environment aimed at spreading religious faith – despite the presence of children, the importance of the graduation ceremony, and, most importantly, the existence of other suitable graduation sites – if the District approved of the Church’s message.”

After last week’s decision allowing prayer before town meetings (which we covered in an FR Alert), one might have expected the Supreme Court to take up (and even reverse) the Seventh Circuit’s decision. But the Court declined to even hear the appeal.

In a relatively uncommon step, Justice Scalia, joined by Justice Thomas, dissentedfrom the Court’s denial of review in the case. Scalia compared the complaints of non-Christian parents about holding graduation ceremonies in churches to his own dislike for the public playing of “rock music and Stravinsky,” and expressed his belief that based on prior Supreme Court precedent, such an aversion “cannot be imposed by law because of the First Amendment.” In other words, according to Scalia and Thomas the Establishment Clause of the First Amendment does not even apply to, let alone prohibit, holding graduation ceremonies in churches. Scalia argued that because the Seventh Circuit’s decision was en banc (before all the judges of the Seventh Circuit), prompted three powerful dissents, conflicted with decisions that have long allowed graduation ceremonies to take place in churches, and conflicted with decisions upholding other public uses of religious spaces, Supreme Court review should have been granted.

The Supreme Court’s decision not to hear the case means the Seventh Circuit’s decision remains good law, and binding law for school districts in its jurisdiction. Notably, the decision does not hold that a graduation ceremony may never be held in a church or other religious building. Rather, the decision cautions against such proceedings being held in a location with the “sheer religiosity” of the church in question in the case. As our previous summary explained:

[T]he church . . . had a 15-20 foot tall cross at the front of the sanctuary, as well as Bibles and hymnals in the pews and religious literature in the lobby, including signs and pamphlets targeted at children. Some years, church members staffed the information booths and/or distributed religious literature.”

The reality of the decision, however, is that it is legally risky to hold a graduation ceremony in any church, and so caution is warranted by schools considering doing so. At the very least, review of the question by legal counsel is imperative.

As a frequent advisor to school districts on freedom of information requests, the question I face most often is how a public body can protect a sensitive document from release. Rarely am I asked what might happen if a public body decides to release a record that could have been protected under a freedom of information law. A recent decision from the Iowa Supreme Court is a reminder of the importance of focusing on that question when choosing to release records that might be subject to an exemption under a records request law.

The Case

In Sebring v. Des Moines Independent Community School District, a former Des Moines school district superintendent, Nancy Sebring, sued the school district and a number of its officials, including the former school board president and school attorney for invasion of privacy. The school district and its officials had released certain sexually explicit emails Sebring sent or received on the school district’s email servers in response to a request for records under the Iowa Open Records Law. The request, from the Des Moines Register, had sought emails relating to Sebring’s impending departure from the school district to serve as superintendent in Omaha, Nebraska. The sexually explicit emails were not related to Sebring’s departure for Omaha, but incidentally included the term “Omaha” and so were uncovered in a broad search by the school district’s information technology department. Despite the fact that the emails were not responsive to the request, the school district released them to the newspaper, anyway.

In April, an Iowa trial court ruled that Sebring had sufficiently alleged claims against the school district to move forward with her case. The court noted that when the school district uncovered the emails, officials recognized that the emails could be evidence of misuse of technology by Sebring, and so could have led to discipline for Sebring. In Iowa, documents related to disciplinary matters are exempt from disclosure under the public records law. Accordingly, the court held, the school district should not have produced the records.

The school district appealed the decision to the Iowa appellate court, and the case made its way up to the Iowa Supreme Court. Earlier this month, the Supreme Court reportedly decided that it would not hear the school district’s appeal. The trial court’s decision thus stands, and Sebring’s case can proceed to trial.

Insights for School Leaders

Our focus in public records cases usually is on finding an exemption that applies to the (often, sensitive) records that a public body does not want to release. But the Sebring case refocuses our attention on the potential fallout if a public body chooses to release a record that could be protected by an exemption. There are a couple of exemptions that are similar to the one addressed in Sebring in Illinois, for instance. Under our Freedom of Information Act (FOIA), not only are certain disciplinary records exempt from release through a cross-reference to the Personnel Records Review Act, but there is also a general catch all exemption for records the release of which would be an unwarranted invasion of personal privacy. Records that are not related to one’s public business may fall under that latter exemption. Notably, the decision whether or not to release exempt records typically is a choice for public bodies. Under the Iowa and Illinois public records laws, for instance, a public body may rely on an exemption to withhold a record, but it is not required to do so. The Sebring case is an important reminder that there can be legal risks in how public bodies exercise that choice, and specifically where a public body chooses to release a document that might be subject to an exemption. That release may not violate the public records law, but it might provide fodder for a lawsuit by the subject of the records released.

School districts across the country allow their athletic departments and coaches to regulate student player appearances, including rules requiring male players to wear short hair styles. In a recent decision, Hayden v. Greensburg Community School Corporation,the Seventh Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana, and Wisconsin, struck down such a hair length rule for male basketball and baseball players at an Indiana school. The court found that the rule illegally discriminated against male students. The case is one of the first in decades to address hair length rules in school, and one of the only cases ever to address the important role of such rules in school athletics. Although the decision appears at first blush to be a warning against such rules, a closer look at the decision shows critical limitations that soften its blow. Although the case justifies school leaders taking a close look at hair length rules in male athletics programs, it certainly is not the death knell for such rules when properly designed.

The Court’s Decision

In Hayden, the parents of a middle school basketball player challenged a hair length rule on the boys’ basketball team. According to the coach of the basketball team, the rule was intended to promote team unity and project a “clean cut” image for the team. The student, however, did not “feel like himself” with short hair and alleged that the rule, among other things, discriminated against him based on his gender. The school’s boys’ baseball team had a similar hair length rule, but none of the girls’ teams did.

The Court did not foreclose that a boys’ team could have a hair length rule even if the female team did not have a similar rule. Borrowing a standard from employment discrimination cases dealing with grooming standards, the court assumed (without deciding) that a school may have sex-differentiated standards if they are: (1) in some way justified by community norms; and (2) part of a comprehensive, evenly-enforced grooming code that imposes comparable burdens—if not identical ones—on males and females alike. Applying that standard, the court held that the hair length rule discriminated against male students on the basis of gender based on the second prong of the test. Although the parties stipulated that female players were subjected to some grooming standards, there were no facts regarding the content of those standards, and so the court could not “assess whether the standards [applied to girls] are comparable, [to those applied to boys], notwithstanding the disparity in the hair-length component of the grooming standards.”

Application by School Leaders

The Seventh Circuit’s decision, which is one of the first of its kind and one of the first decisions addressing hair lengths in schools in decades, has garnered media attention and warrants a close look at hair length policies in male athletic programs. But as the summary above shows, there are important limitations necessary to understanding how the case should be applied by school leaders. Specifically, the court did not hold that boys’-only hair length policies are not acceptable in K-12 public schools. Rather, the court suggested that such hair-length policies are acceptable if they are based on relevant community norms and are part of a larger grooming program that includes limitations that are comparably limiting to male and female students.

Notably, it cannot simply be assumed that hair-length policies for boys are based on relevant community norms. The Hayden court questioned whether male hair length standards (which came about decades ago in the 1960s and 1970s) are still relevant community standards today. As the court pointed out, some members of the court “might [even] find themselves in trouble” under such a rule, which prohibited hair worn over the ears, collar, or eyebrows. But as the dissent pointed out, the courts have adopted an extremely deferential view of such questions in the employment context, finding that appearance regulations are defensible if they have some justification in accepted social norms. So school districts should be able to successfully argue that, at least in their communities, hair-length rules for boys are based on relevant community norms.

Care should also be taken to establish that there is an overarching grooming policy that is equally harsh on boys and girls alike. The court provided some examples of questions it might ask to determine if a boys’ hair length policy is part of a larger, consistently-applied grooming program that includes limitations on both male and female students. For example, a court might ask:

Are female students prohibited from wearing jewelry?

Are female students required to wear their hair in any particular way with the goal of having a neat, clean-cut appearance?

Are there limits, other than those on “extreme” hairdos like Mohawks, on how female students can style their hair and are any of those limits based on community norms (e.g., a prohibition on “buzz cuts”)?

Are the respective grooming standards enforced evenhandedly between girls and boys?

Although these are just examples, they provide some insight into the types of limitations on female programs that a court might consider when determining if a grooming policy limits boys and girls equally.

Based on this case, school leaders should take a close look at any gender specific grooming policies for their sports teams to ensure that they are based on relevant community standards and that any limitations that apply to only one gender are based on community norms and are part of a comprehensive grooming policy that, as a whole, is equally burdensome on male and female players. If a rule complies with these standards, it will be in the best position to withstand scrutiny even after the Hayden decision.

In an earlier blog post, we addressed whether an Ohio school district violated the First Amendment by hanging a portrait of Jesus in a middle school. The portrait allegedly was a gift to the school board by a Christian student club and had been hanging in the school district’s schools since the 1940s. In February, the school board voted to allow the picture to remain despite a lawsuit filed by the ACLU and the Wisconsin-based Freedom from Religion Foundation (FFRF). The school board said that the portrait is not owned by the school but rather belongs to a Christian student club, and that removing it might violate the First Amendment rights of the students in the club.

The parties reportedly reached a tentative agreement months ago when, in April, the school board took the picture down. The legal fight was rekindled, however, when the ACLU and FFRF learned that the school district continued to keep the portrait in its high school building in an area visible to those entering an art-storage area, and displayed the picture on a school lawn during a prayer meeting. After a flurry of more legal filings, the school district decided to settle, agreeing to remove the picture from its school buildings, to pay each of the anonymous students who brought the complaint $3,000, and to pay the ACLU and FFRF $80,000.

As we pointed out in our earlier blog post, there are a number of key takeaways that school leaders can glean from this case.

Courts are generally skeptical of religious displays, including religious works of art, that appear to be school-sponsored speech unless there is a clear secular purpose behind the display. A secular purpose might include a display including art work from a number of religions or examples of historical figures. A court also may be concerned if only one religion, such as Christianity, is represented. When the religious speech purportedly is that of a student or students, the issue becomes more difficult. Whether it is a posting by a student group, a student submission to a class or contest that includes religious content, student speech with religious undertones at a talent show or a graduation or other assembly, or the reading of prayers by students at a football game, there are a myriad of legal rules and challenges of which school leaders should be aware. The Ohio settlement makes clear that balancing these rules and challenges can be difficult, and sometimes costly.

The Ninth Circuit Court of Appeals joined a growing number of federal courts of appeals that have addressed when public schools can discipline students for off-campus, online misconduct. The case involved multiple threats by a Nevada high school student, made on his own computer on his own time, that he would commit a school shooting. The court held that the school’s discipline of the student did not violate his constitutional rights, but took care to make clear that its holding was limited to threats of serious school violence. The court saved for another day the more difficult issue of when other types of non-threatening off-campus, online misconduct – such as harassment or bullying of staff or other students – can be the subject of school discipline.

The Facts

In Wynar v. Douglas County School District, a student of Douglas High School in Minden, Nevada sent a number of troubling instant messages through MySpace to classmates from his home computer. In the messages, he bragged about having a stockpile of weapons, threatened to shoot and “take out” particular students on the anniversary of the Columbine school shooting, and boasted that his victims would outnumber those in the Virginia Tech shooting – the deadliest school shooting to date. After some of the student’s friends reported the messages to school authorities, school officials interviewed the student, who admitted that he wrote the messages but claimed they were a joke. The school district expelled the student for 90 days for violating a policy against threatening other students. The student sued, arguing that his off-campus speech was protected by the First Amendment of the U.S. Constitution. (more…)

The big news this week in education is the U.S. Supreme Court’s 7-1 decision in Fisher v. University of Texas. In Fisher, the Court held that the lower court should not have taken at face value the University’s claim that it needed to use race in admissions decisions. The Court remanded the decision to the lower court to decide whether the University can establish that its consideration of race is narrowly tailored. Specifically, the University must show that it adequately considered race-neutral alternatives before deciding to consider race in admissions. The decision was a higher education decision, but there are important takeaways for primary and secondary schools, as well.